YASHWANT ETC. versus THE STATE OF MAHARASHTRA

[2018] 12 S.C.R.

YASHWANT ETC.

THE STATE OF MAHARASHTRA

(Criminal Appeal No(s). 385-386 of 2008)

SEPTEMBER 4, 2018

[N. V. RAMANA AND MOHAN M. SHANTAGOUDAR, JJ.]

Penal Code, 1860 – ss.302, 304 and ss.330,354,355, 342 r/w. s.34 – Prosecution case was that the police officials took victiminto custody in order to extract information regarding ‘loot’ in aChotel – It was alleged that police officials caused injuries to thevictim in furtherance of extracting confession which led to his deathin police custody – Trial Court acquitted all accused police officials(A-1 to 10) u/s. 302 of IPC but convicted them u/ss.330, 354, 355,342 r/w.34 of IPC – High Court acquitted (A-1 to 9) of the offencesDpunishable u/ss.354,355, 342 r/w.34 of IPC, however, upheld theirconviction u/s.330 of IPC and acquitted A-10 of all the offences –Consequently, accused (A-1 to 9) were sentenced to rigorousimprisonment for three years u/s.330 of IPC – In appeal beforeSupreme Court , State sought to press for charges u/s.304 Part-II ofIPC, in case s.302 of IPC was not made out – Meanwhile A-1 passedEaway – Held: Both Courts below had taken concurrent view thatthe crime did not amount to culpable homicide as the cause of deathwas asphyxiation and there was nothing on record to prove that theinjuries were the cause of the death – It was on record that injuriesnoted in the post mortem indicated that the nature of these injuriesFwere not grievous – Rather, it was case wherein victim-deceaseddied of asphyxiation due to contents of his vomit, hours later fromthe time when the injury was inflicted, which was an independentreason for cause of death – The casual link between the injuriescaused to the deceased by the erring officers and the death was notconnected, therefore, s.299 of IPC not attracted – Accordingly, thereGis no question of attracting s.302 or s.304 IPC – As police in thiscase are violators of law, who had primary responsibility to protectand uphold law, therefore, the term of sentence of A-2 to A-9 modifiedto the maximum imposable period u/s.330 of IPC i.e., seven yearsof rigorous imprisonment.

Penal Code, 1860 – s.299 – Culpable homicide – Held:Causation is an important ingredient to determine as to whether aperson commits culpable homicide in the first place – Causationsimply means “causal relationship between conduct and result” –s.299 indicates two types of causations, one the factual causationand the second the legal causation – Coming to the factual causation,it is matter of fact as to whether the action of the accused causeddeath of the person – But the second aspect concerns itself, whetherthe death can be sufficiently imputed to the accused’s action asbeing responsible legally.

Maxim – Falsus in uno, falsus in omnibus – discussed.

Doctrines/Principles – Principle of ‘Take their victim as theyfind them’ – discussed.

Disposing of the appeals, the Court

HELD: 1. It is matter of record that both the courts belowhave taken concurrent view that the crime in question did notamount to culpable homicide as the cause of death wasasphyxiation and there was nothing on record to prove that theinjuries were the cause of the death. It is well settled that inorder to be called murder, it needs to be culpable homicide inthe first place, that is to say all murders are culpable homicides,but the vice versa may not true in all cases. [Para 16] [664-H;665-A-B]

2. Under Section 299 of Indian Penal Code, 1860 causationis an important ingredient to determine as to whether personcommits culpable homicide in the first place. Causation simplymeans “causal relationship between conduct and result”. Now,what need to be assessed is whether the contentions of the partiescould stand the scrutiny of the law of the land. Section 299indicates two types of causations, one the factual causation andthe second the legal causation. Coming to the factual causation,it is matter of fact as to whether the action of the accused causeddeath of the person. But the second aspect concerns itself,whether the death can be sufficiently imputed to the accused’saction as being responsible legally. This case turns on the secondleg of causal relationship wherein, could the injuries caused by

Athe police officers be sufficiently imputed to be the cause of deathof victim herein? [Para 17] [665-D-F]

3. It is settled under common law wherein the principle of‘take their victim as they find them’ is followed, meaning ‘A personwho does any act/omission which hastens the death of anotherBperson who, when the act is done or the omission is made, islabouring under some disorder or disease arising from anothercause, is deemed to have killed that other person.’ This principlehas been expressly ingrained under the Explanation 1 to theSection 299 of IPC. Without going into details on this aspect asthis is not case of multiple causation, rather it is case whereinCthe deceased died of asphyxiation due to contents of his vomit,hours later from the time when the injury was inflicted, which isan independent reason for cause of death herein. [Para 18] [665-F-H; 666-A]]

4. The various other circumstances which dis-associateDthe cause of death to the actions of the appellant officers areavailable. It is on record that the injuries noted in the post-mortem report clearly indicate that the nature of these injurieswere not grievous. The head injury noted does not show anyinternal fracture to the skull bone. Therefore, when, on facts, itEis concurrently inferred by the courts below that the cause ofdeath was due to asphyxiation, there are no reasons for acceptinga different factual inference herein, as the same is not perverse.[Para 19] [666-B-C]

5. The causal link between the injuries caused to theFdeceased by the erring officers and the death is not connected,therefore, Section 299 of IPC is not attracted. Accordingly, thereis no question of attracting Section 302 or 304 of IPC. [Para 21]]666-F-G]

6. From the facts portrayed it is clear that the police knewGthe identity of the deceased was different from the person, theywanted to investigate initially. The manner in which the deceasedand his family members were taken into custody reflects pureact of lawlessness and does not befit the conduct of the Police. Inthe facts and circumstances of this case, the punishment of three-year imprisonment imposed by the Trial Court under Section 330Hof IPC, would be grossly insufficient and dis-proportional. It is

appropriate to increase the term of sentence to maximumimposable period under Section 330 of IPC i.e., seven years ofrigorous imprisonment, while maintaining the fine imposed bythe Trial Court. Accordingly, the sentence modified to this limitedextent. [Paras 30 and 34] [669-G-H; 67-C-D]

Chandrappa v. State of Karnataka (2007) 4 SCC 415 :B[2007] 2 SCR 630;Mahtab Singh v. State of U.P,(2009)13 SCC 670: [2009] 5 SCR 848; State of M.P. v.Shyamsunder Trivedi (1995) 4 SCC 262 : [1995] 1Suppl. SCR 44 ;State of West Bengal v. Shew MangalSingh and Ors.AIR 1981 SC 1917 : [1982] 1 SCRC360;Kulwinder Singh v. State of Punjab (2007) 10 SCC455 : [ 2007] 8 SCR 891;Ganesh v. State of Karnataka(2008) 17 SCC 152 : [2009] 5 SCR 848;Jayaseelan v.State of Tamil Nadu(2009) 12 SCC 275 : [2009] 3SCR 200;State of Rajasthan v. Mohan Lal and Anr.Criminal Appeal No. 959 of 2018 decided by the SupremeDCourt on 01.08.2018; Soman v. State of Kerala(2013) 11SCC 382 : [2012] 11 SCR 1155;Alister Anthony Pareirav. State of Maharashtra(2012) 2 SCC 648 : [2012] 1SCR 145 – referred to.

R v Blaue[1975] 3 All ER 446 (CA) – referred to.

Ratanlal and Dhirajlal’s Law of Crimes (27th Ed.) –referred to.

Case Law Reference

ACRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 385-386 of 2008

From the Judgment and Order dated 13.12.2007 of the High Courtof Judicature at Bombay, Nagpur Bench, Nagpur in Criminal AppealNos.393 of 1995 and 397 of 1995

WITH

Criminal Appeal Nos. 182-187/2009, 299/2008, 387-388/2008

R. Basant, S. Nagamuthu, Sr Advs., Shivaji M. Jadhav, VishnuP., Brij Kishor Sah, Aditya Khanna, P. Parthiban, Nicholas Choudhury,CMs. Astha Deep, A.S. Vairawan, Prashant R. Dahat, VenkateswaraRao Anumolu, Nishant Ramakantrao Katneshwarkar, Ms. Suvrna Ganu,Advs. for the appearing parties.

The Judgment of the Court was delivered by

N. V. RAMANA, J.

“With great power comes greater responsibility”

1. At the outset it is important to note that our police force needto develop and recognize the concept of ‘democratic policing’, whereincrime control is not the only end, but the means to achieve this order isalso equally important. Further the turn of events in this case obligatesEus to re-iterate herein that ‘be you ever so high, the law is always aboveyou!’

2. These criminal appeals are filed against the impugned commonorder and judgment, dated 13.12.2007, passed by the High Court ofJudicature at Bombay, Nagpur Bench, in Criminal Appeal Nos. 393,F394, 395, 397, 419 and 420 of 1995. As the incident is same and contentionscanvassed individually, being similar, we proposed to deal with the judgmentthrough this common order.

3. The prosecution’s case in brief are that on 23.06.1993, PoliceInspector (P.I) Narule (A-1) was on duty, when one head constableGTelgudiya (PW-48), working at the concerned Police Station, Deolaparcame to P.I Narule (A-1) accompanied by three persons namelyGaneshprasad, Arunkumar and Kashiram. They informed P.I Narule(A-1) that they were staying at India Sun Hotel and were looted eightdays before. It may be relevant that they informed P.I Narule (A-1) thatHthey had not lodged any complaint concerning the incident.4. On that night , the accused patrolling party which included P.INarule (A-1), Assistant Police Inspector Yashwant Mukaji Karade (A-2), Sub-Inspector Rambhau Vitthalrao Kadu (A-3), Police constablesJahiruddin Bashirmiya Deshmukh (A-4), Nilkanth Pandurang Chaurpagar(A-5), Namdeo Nathuji Ganeshkar (A-6), Ramesh Tukaram Bhoyar(A-7), Ashok Bhawani Gulam Shukla (A-8), Sudhakar Marotrao Thakre(A-9) and Raghunath Barkuji Bhakte (A-10), along with Ganeshprasad,Arunkumar and Kashiram, went to the house of H.C.P Telgudiya (PW-48) at Police Lines, Ajni. In the meanwhile, H.C.P Telgudiya (PW-48) issupposed to have found out that Christian male by the name of ‘Anthony’was responsible for the looting. Although, the H.C.P Telgudiya (PW-48)confirmed that there was no ‘Anthony’, but he is supposed to haverevealed that one Joinus (deceased) lives nearby, who was knownsuspect from earlier robbery case. H.C.P. Telgudiya, took the policeparty to the residential quarters of Joinus (deceased), who had alreadyslept after having his dinner and consuming some alcohol.

5. It was around 1:00 AM in the night, the police party reachedthe house of Joinus (deceased). He was taken into custody and hisresidential quarters were searched. It is alleged that during this process,some of the police men are supposed to have molested Zarina (PW-1),wife of Joinus (deceased). Thereafter, the police party tied Joinus(deceased) to an electric pole outside and was beaten by the policepersonnel with sticks. Later Joinus (deceased) and his other familymembers were taken to various locations including Rani Kothi, Hill Toprestaurant wherein he was given beatings intermittently. At about 3:55AM he was brought back to the police Station, wherein he was locked-up with two other cell mates.

6. In the morning of 24.06.1993 at 7:30 AM, on duty policeconstables found Joinus (deceased) to be motionless and on examinationhe was found to be not breathing. Meanwhile, Magistrate was requestedto conduct an inquest and chemical analysis. The case was handed overto the State CID for investigation into the matter. complaint came tobe registered against one Anthony, being Crime No. 238/1993 underSection 420 of IPC at 10:20 PM on 24.06.1993 after the death of Joinus.Thereafter, post-mortem was conducted, and investigation was conductedby P.I. Oza. After requisite sanction was granted by the Government forprosecuting the accused, the investigating officer laid charges againstten erring officers in the following manner-

1.) That you all the accused on 23.06.1993 at about 23.00 hoursmade an entry in the Movement Register of Crime Branch at Sr.No. 26 that you left the Crime Branch Office for Night Patrollingand thereafter along with Ganeshprasad Thakur, ArunkumarGupta, Kashiram Barethia, Head Constable Madhorao Tenguriyadrove in the police van Bearing No. MH-12/9887 and forciblyentered the house of the deceased Joinus Adam Yelamati at about00.45 hours on 24.06.1993. The deceased was wearing hisunderwear and banian and was sleeping in his house. You all theaccused in furtherance of your common intention pulled thedeceased out of his house and took him on the road and tied himto the electric pole with rope and he was given merciless beatingwith the stick. The deceased was made to sit in the said CrimeBranch Vehicle and he was brought to the office of Crime Branch.You made him naked and also gave heavy beating to thedeceased with the stick in the Crime Branch office. At that timeyou all were aware that such merciless beating would cause thedeath of the deceased. You kept him in the lock up at about 3.55a.m. without registering any offence in the Crime Branch. In themorning, the deceased found dead. You did commit murder ofJoinus Adam Yellamati and thereby you all committed an offencepunishable u/s. 302 r/w. Sec. 34 of the Indian Penal Code andwithin my cognizance.2.) Secondly, that you all the accused in furtherance of yourcommon intention entered the house of deceased Joinus AdamYellamati at about 00.45 hours on 24.06.1993 and pretended totake the personal search of the wife of the deceased namelyZarina and under the pretext of taking search, touched the breastsof Zarina. Thereafter, you made her to sit in your police van andalso took pinches on her body with an intention to outrage hermodesty. Thereafter, she was brought to your Crime branch officeand you inserted your hand in the petticoat of Zarina with anintention to outrage her modesty and by such assault you allthereby committed an offence punishable u/s 354 r/w Sec. 34 ofthe Indian Penal Code and within my Cognizance.

3.) Thirdly, that you all the accused in furtherance of yourcommon intention, wrongfully confined two children of thedeceased namely Kumari Stenlos aged 10 years and boy Jorgeaged 8 years and the brother of Zarina by name Richard Abraham,

aged 19 years and another cousin brother by name Stenly Patrik,aged 19 years and thereby committed an offence punishableu/s. 342 of the Indian Penal Code, and within my cognizance.

4.) Fourthly, that you all the accused in furtherance of yourcommon intention, on the aforesaid day, date, time and place,voluntarily caused hurt to Joinus Adam Yellamati, aged 42 yearsand Zarina w/o Joinus Yellamati for the purpose of extortingfrom the said Joinus Yellamati and Zarina w/o Joinus Yellamaticertain information which might lead to detection of offence ofcheating committed at Hotel “India Sun”, Nagpur, in respect ofone Ganeshprasad Babulal Thakur and one Arunkumar Guptaand thereby committed an offence punishable u/s. 330 r/w Sec34 of the Indian Penal Code and within my cognizance.

5.) Fifthly, that you all the accused in furtherance of your commonintention on the aforesaid day, date, time and place, assaultedJoinus Adam Yellamati and Zarina w/o Joinus Yellamati, intendingby such assault to dishonor said Joinus Adam Yellamati and Zarinaw/o Joinus Yellamati and thereby committed an offencepunishable u/s. 355 r/w Sec. 34 of the Indian Penal Code andwithin my cognizance.

7. All the accused pleaded not guilty and claimed trial. TheSessions Court in Sessions Case No. 416 of 1993, by order dated22.09.1995, passed following order-

AThe sentence was ordered to run concurrently.

8. The reasons provided by the trial court for the acquittal/conviction in short, are as follows-

i.That reliance is placed on the evidence of Dr. Kewalia/PW-49 (Ex. 296), to conclude that there was possibilityBof death of the deceased, may have been due toasphyxiation.

ii.That the post mortem report or the medical evidence clearlyindicates that the injuries in the Column No. 17 did notcorrelate with the asphyxial death.C

iii.That the injuries sustained simple injuries and were notsufficient to cause death of an individual.

iv.That the presence of the accused-officers are admitted andthe same cannot be dislodged as the same is proved by theDmovement register.

v.From the conspectus of other evidence it was clear thatinjuries were caused by the police officer to extractinformation, which would squarely fall under the four cornersof Section 330 of IPC.

E9. Aggrieved by the order of the trial court, accused-Bhaskar[A-1], Yashwant [A-2], Raghunath [A-10]) filed Criminal Appeal No.393 of 1995, Jahiruddin [A-4], Nilkanth [A-5] and Namdeo [A-6] filedCriminal Appeal No. 394 of 1995, Ramesh [A-7], Ashok Bhavani GulamShukla [A-8], Sudhakar [A-9] filed Criminal Appeal No. 395 of 1995,Rambhau [A-3] filed Criminal Appeal No. 397 of 1995, before the HighFCourt. On the other hand, State of Maharashtra also filed Criminal Appealbeing Criminal Appeal No. 419 of 1995 against the judgment of acquittaland Criminal Appeal No. 420 of 1995 for enhancement of sentence.10. By order dated 13.12.2007, the High Court dismissed theappeal preferred by the State being Criminal Appeal No (s). 419 andG420 of 1995, but partly allowed the appeals preferred by the accusedofficer by acquitting accused no. 1 to 9 of the offences punishable underSections 354, 355, 342 read with 34 of IPC, however, upheld the convictionunder Section 330 of IPC. Moreover, Raghunath Barkuji Bhakte (A-10) was acquitted of all the offences. The High Court passed theHaforesaid order on the following grounds-

i.That the injuries to the deceased are established by thePost-mortem report, corroborated by the photographs takenduring the investigation.

ii.That the benefit of doubt as to the cause of death was notresult of the injuries sustained by the accused, should enureto the accused appellants herein.

iii.Even though there are many discrepancies in the evidenceof PW-1 [Zarina], the court separated the falsehood fromthe truth.

iv.That offence under Section 355 of IPC is not proved beyondreasonable doubt as there are stark discrepancies in thisCregard.

v.That the accused A-10’s presence is not proved and thebenefit of doubt needs to be given to him, thereby mandatinghis acquittal.

11. Still aggrieved by the High Court order, accused-Yashwant[A-2] and Bhaskar [A-1] filed Criminal Appeal No. 385 of 2008,Rambhau [A-3] filed Criminal Appeal No. 386 of 2008, Jahiruddin [A-4], Nilkanth [A-5] and Namdeo [A-6] filed Criminal Appeal No. 387 of2008, Ramesh [A-7] and Ashok Bhavani Gulam Shukla [A-8] filedCriminal Appeal No. 388 of 2008, Sudhakar [A-9] filed Criminal AppealNo. 299 of 2008, State of Maharashtra filed Criminal Appeals No. 182-187 of 2009. This Court by order dated 22.02.2008, while issuing noticein these cases, the appellant-accused were also issued show cause noticefor enhancement of sentence. It may not be out of context to note thataccused A-1 is said to have passed away after filing of these appeals,accordingly, the name of accused A-1 was struck off and the convictionagainst him stands abated.

12. When the matter was argued, learned senior counsel, Mr. R.Basant and Mr. S. Nagamuthu, together contended that-

a.That the concurrent opinion of the court below, w.r.t nonapplicability of Section 302 of IPC, need not be disturbed.

b.The defence of superior orders were applicable for the otheraccused subordinate officers.

c.That in any case the charge under Section 330 of IPC couldhave been attracted in this case.

Ad.In alternative, he pleads that only Section 323 of IPC maybe maintainable which would suffice punishment of theperiod already undergone.

e.In any case they plead that acquittal of Accused A-10 shouldnot be interfered with.

13. On the other hand, Mr. Nishant Ramakantrao Katneshwarkar,leaned counsel for the State of Maharashtra has brought to our noticethat the evidence of PW-49, who has categorically stated that the effectof death was the cumulative effect of the injuries caused. Further, it iscontended that the number of injuries are sufficient to prove the causalCconnection. In the end, the State has argued that the custodial tortureneeds to be taken seriously and punished appropriately. Alternatively,State seeks to press for charges under Section 304 Part II of IPC, incase Section 302 of IPC is not made out.

14. Having heard learned counsels for both the parties and perusingDthe documents on record, we are of the opinion that we need to addressonly four questions herein, as the High Court has sufficiently consideredother questions, which we need not interfere with. The first question iswhether the incident narrated above amounted to murder so as to attractSection 302 of IPC?

E15. brief narration of background facts may be necessary tounderstand the circumstances in which this contention arose. That it hasbeen established by PW-21 (Kishan Khadode), that the lock-up in whichJoinus (deceased) was found was suffocating, dirty and bottle guardseeds were found vomited in the place where the body of the deceasedwas found. PW-49 (Dr. Kewaliya), the doctor who conducted post-Fmortem, opines that the cause of death was due to asphyxia, as therewere indications for the same such as defecation, urethra discharge etc.Even though PW-49 was not subjected to detailed cross-examination onthe aspect of choking due to vomiting, However, the doctor does acceptthe possibility of asphyxiation due to such choking from the contents ofvomit. The other circumstance was that the deceased was found to beGin an inebriated condition, which as per the medical evidence decreasesthe resistance to stress. Moreover, it is on record that the deceased wasearlier suffering from Tuberculosis.

16. It is matter of record that both the courts below have takena concurrent view that the crime narrated above did not amount toH

culpable homicide as the cause of death was asphyxiation and therewas nothing on record to prove that the injuries were the cause of thedeath. It is well settled that in order to be called murder, it needs to beculpable homicide in the first place, that is to say all murders are culpablehomicides, but the vice versa may not true in all cases. Therefore, weneed to ascertain whether case of culpable homicide is made out hereinin the first place. In this context, we need to observe Section 299 of IPCat the outset-

299. Culpable homicide.—Whoever causes death by doingan act with the intention of causing death, or with the intention ofcausing such bodily injury as is likely to cause death, or with theknowledge that he is likely by such act to cause death, commitsthe offence of culpable homicide.

(emphasis supplied)

17. As noted above, causation is an important ingredient todetermine as to whether person commits culpable homicide in the firstplace. Causation simply means “causal relationship between conductand result”. In this respect we need to assess whether the contentionsof the parties could stand the scrutiny of the law of the land. Section 299of IPC indicates two types of causations, one the factual causation andthe second the legal causation. Coming to the factual causation, it is amatter of fact as to whether the action of the accused caused death ofthe person. But the second aspect concerns itself, whether the deathcan be sufficiently imputed to the accused’s action as being responsiblelegally. In our considered opinion this case turns on the second leg ofcausal relationship wherein, could the injuries caused by the police officersbe sufficiently imputed to be the cause of death of Joinus herein?

18. It is settled under common law wherein the principle of ‘taketheir victim as they find them’ is followed,[1] meaning ‘A person whodoes any act/omission which hastens the death of another person who,when the act is done or the omission is made, is labouring under somedisorder or disease arising from another cause, is deemed to have killedthat other person.’ This principle has been expressly ingrained under theExplanation 1 to the Section 299 of IPC. Without going into details onthis aspect as this is not case of multiple causation requiring us toconsider the same, rather it is case wherein the deceased died of

1R v Blaue, [1975] 3 All ER 446 (CA)

DEF

Aasphyxiation due to contents of his vomit, hours later from the time whenthe injury was inflicted, which is an independent reason for cause ofdeath herein.

19. As elucidated above, various other circumstances which dis-associate the cause of death to the actions of the appellant officers areBavailable. It is on record that the injuries noted in the post-mortem reportclearly indicate that the nature of these injuries were not grievous. Thehead injury noted does not show any internal fracture to the skull bone.Therefore, when, on facts, it is concurrently inferred by the courts belowthat the cause of death was due to asphyxiation, we do not see anyreasons for accepting different factual inference herein, as the same

Cis not perverse.

20. Further, we agree with the reasoning of the High Court on theaspect that the PW-1 (Zarina) has not been completely honest in herstatements. She has at times deposed over-zealously, thereby mandatingus to be cautious in accepting her evidence. Further no witness hasDclearly deposed on the aspect of injuries and how they happened to be,except for blank statements that ‘beatings were given to the deceasedJoinus’. Further we may note that the surrounding circumstances alsostrengthen our conclusions such as firstly, the condition of the deceasedwas said to be good as per the statements of PW-21 (cell-inmate) andEPW-42 (head constable) although he was suffering from tuberculosis,when he was admitted in the lock-up. Secondly, Joinus (deceased) washeavily inebriated when he was arrested and thirdly, the aspect ofasphyxiation which is significant cause to break the chain of causallink between the death of Joinus and the injuries inflicted by the appellantsherein.F

21. As discussed above, the causal link between the injuries causedto the deceased by the erring officers and the death is not connected,therefore, Section 299 of IPC is not attracted. Accordingly, there is noquestion of attracting Section 302 or 304 of IPC.

22. In any case this Court in catena of cases has taken viewthat, as regards the inference of facts, when two Courts have acquittedthe accused-appellant of charges under Section 302 of IPC, then it wouldnot be appropriate upon this Court to overturn the factual finding, unlessthe view taken by the lower courts is shown to be highly unlikely orunreasonable or perverse. Although the learned counsel for the State

has tried to argue that the cumulative effect of the injuries was responsiblefor the death, but the medical evidence itself, on the other hand affirmsthe high possibility of death due to asphyxiation. Further there is no materialbrought before us to portray that the courts below had taken perverseview. In this light, when two reasonable views are possible, then reversalof concurrent acquittal would not be appropriate herein [referChandrappa v. State of Karnataka, (2007) 4 SCC 415; Mahtab Singhv. State of U.P, (2009) 13 SCC 670].

23. It may not be out of context to note that it is generally difficultto prosecute the custodial torture cases as the evidence available onrecord may not sufficient. It is in this context that Law Commission in its113[th] Report published in 1985 had recommended inclusion of Section114-B to the Evidence Act, but the same was never materialized into astatutory law. Further this Court in State of M.P. v. ShyamsunderTrivedi, 1995 (4) SCC 262, appealed to the Parliament for consideringsuch amendment.

24. The Second question is with respect to the defence of superiororder or infamously known as ‘Nuremburg defence’ pleaded by theaccused-appellants (subordinate officers). The earliest known example,wherein such defence was pleaded was before an international ad hoctribunal, can be traced to the trial of Peter Von Hagenbach for occupationof Breisach on the orders of Duke of Burgundy in the year 1474.[2] Weare aware of the fact that IPC allows such defence if conditionsprovided under Section 76 of IPC are fulfilled. three-Judge Bench ofthis Court in State of West Bengal v. Shew Mangal Singh and Ors.,AIR 1981 SC 1917, observed as under-

Section 76 of the Penal Code provides that nothing is an offencewhich is done by person who is, or who by reason of mistakeof fact and not by reason of mistake of law in good faith believeshimself to be, bound by law, to do it. The illustration to that sectionsays that if soldier fires on mob by the order of his superiorofficer, in conformity with the commands of the law, he commitsno offence. The occasion to apply the provisions of the sectiondoes not arise in the instant case since the question as to whetherthe accused believed in good faith on account of mistake offact that he was bound by law to do the act which is alleged to

2 Y. Dinstein, “The Defence of Obedience to Superior Orders in International Law”,Leyden, 1965.

668SUPREME COURT REPORTS

Aconstitute an offence, would arise only if, to the extent relevantin this case, the order or command of the superior officer is notjustified or is otherwise unlawful.

25. It is matter of record that accused A-1 has passed awayand the matter against him stands abated. The other accused-appellants,Bwith view to take advantage of this situation, as an after-thought havepleaded herein the defence that they were merely executing the ordersof accused A-1. At the outset we may indicate that it is not merely thatthe accused-appellants have to prove that they have followed the orderof the superior officer (accused A-1), rather they need to also prove tothe Court that the aforesaid appellants bonafidely believed that the ordersCissued by accused A-1 were legal. However, our attention was not drawnto any argument before the courts or evidence on record to this effectthat the accused-appellants were merely acting on the orders of theirsuperiors on bonafide belief that such orders were legal. It was noteven their case from the beginning that the accused-appellants were not

Daware of facts and circumstances, rather all of them started out as ainvestigation party with full knowledge and participation. On the perusalof the record, we may note that this argument is only taken before thiscourt, to seek re-trial and such attempt cannot be taken intoconsideration herein.

E26. The third question concerns about the acquittal of AccusedA-10 (Raghunath Bhakte). It would be necessary to deal with theindividual liability of accused A-10, as he states that he was not presentwith the investigation party. Although some evidence points to his presencewith the investigation party, but the fact remains that all the other accusedhave unanimously stated that A-10 did not accompany them as he fellFsick during the investigation and accordingly, went home. We need toexamine the liability of accused A-10, with the above premise in mind.27. It is wrought in our criminal law tradition that the Courts havethe responsibility to separate chaff from the husk and dredge out truth.It may not be out of context to note that the legal maxim ‘falsus in uno,Gfalsus in omnibus’ is not applicable in India, thereby the courts aremandated to separate truth from falsehood. [refer Kulwinder Singh v.State of Punjab, (2007) 10 SCC 455;Ganesh v. State of Karnataka,(2008) 17 SCC 152;Jayaseelan v. State of Tamil Nadu, (2009) 12SCC 275] It is not uncommon that in some cases witnesses in theHjealousness to see all the accused get conviction, may stretch the facts

or twist them. In those instances, it is necessary for the Courts to becautious enough to not ‘rush to convict’ rather uphold justice. It is clearfrom the statements of all the accused as well as the evidence of PW-41(Driver Vijay Thengde), PW-48 (HC Telgudiya) and PW-66 (I.O Dy.SP. Godbole) that there exists reasonable doubt as to the presence ofA-10, during the patrolling party and thereafter. Therefore, we are notinclined to disturb the findings of the High Court on this aspect as well.

28. The fourth question, which we need to consider, concerns thepunishment under Section 330 of IPC. At the outset, we need to statethat we do not find any material on record to interfere with the convictionof the accused under the aforesaid Section, except for the quantum ofpunishment, which we need to determine.

29. Recently, this Bench in State of Rajasthan v. Mohan Laland Anr[3], following Soman v. State of Kerala, (2013) 11 SCC 382 andAlister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648observed as under-

From the aforementioned observations, it is clear that the principlegoverning the imposition of punishment will depend upon the factsand circumstances of each case. However, the sentence shouldbe appropriate, adequate, just, proportionate and commensuratewith the nature and gravity of the crime and the manner in whichthe crime is committed. The gravity of the crime, motive for thecrime, nature of the crime and all other attending circumstanceshave to be borne in mind while imposing the sentence. The Courtcannot afford to be casual while imposing the sentence, inasmuchas both the crime and the criminal are equally important in thesentencing process. The Courts must see that the public doesnot lose confidence in the judicial system. Imposing inadequatesentences will do more harm to the justice system and may leadto state where the victim loses confidence in the judicial systemand resorts to private vengeance.

30. From the facts portrayed it is clear that the police knew theidentity of the deceased was different from the person, they wanted toinvestigate initially. The manner in which the deceased and his familymembers were taken into custody reflects pure act of lawlessness anddoes not befit the conduct of the Police. The High Court of Lahore in

3 Criminal Appeal No. 959 of 2018

ALal Mohammad v. Emperor, AIR 1936 Lah 471, had observed thatthere was requirement to treat the crime under Section 330 withstringent punishments in order to have deterrent effect, in the followingmanner-

In my opinion, however, conduct of this sort by responsible policeBofficers engaged in the investigation of crime, is one of themost serious offences known to the law. The result of third degreemethods or of actual torture or beating such as in this case mustbe that innocent persons might well be convicted, confessionbeing forced from them which are false. In almost every case inwhich confession is recorded, in criminal Courts, it is allegedCby the defence that the police have resorted to methods such asthese. It is seldom, however, that an offence of this nature is orcan be proved. It clearly is the duty of the Courts when caseof this kind is proved to pass sentences which may have adeterrent effect.D31. In Ratanlal and Dhirajlal’s Law of Crimes (27[th] Ed.), theauthor while discussing the sentencing under Section 330 of IPC notesas under-The causing of hurt by responsible police officer engagedin investigation of crime is one of the most seriousEoffences known to law and deterrent punishment shouldbe inflicted on the offender.

(emphasis supplied)

32. The factual narration of the events portrayed herein narrate aFspiteful events of police excessiveness. The motive to falsely implicateJoinus for crime he was alien to was not befitting the police officersinvestigating crimes. The manner in which Joinus was taken during latenight from his house for investigation ignores the basic rights this countryhas guaranteed its citizen. It is on record that injuries caused to theindividual were in furtherance of extracting confession. The mala fideGintention of the officers-accused to undertake such action are writ largefrom the above narration, which does not require further elaboration.

33. As the police in this case are the violators of law, who had theprimary responsibility to protect and uphold law, thereby mandating thepunishment for such violation to be proportionately stringent so as toHhave effective deterrent effect and instill confidence in the society. It

may not be out of context to remind that the motto of Maharashtra StatePolice is “Sadrakshnâya Khalanîghrahanâya” (Sanskrit: “To protectgood and to Punish evil”), which needs to be respected. Those, who arecalled upon to administer the criminal law, must bear, in mind, that theyhave duty not merely to the individual accused before them, but also tothe State and to the community at large. Such incidents involving policeusually tend to deplete the confidence in our criminal justice systemmuch more than those incidents involving private individuals. We mustadditionally factor this aspect while imposing an appropriate punishmentto the accused herein.

34. In the facts and circumstances of this case, the punishment ofthree-year imprisonment imposed by the Trial Court under Section 330of IPC, would be grossly insufficient and dis-proportional. We deem itappropriate to increase the term of sentence to maximum imposableperiod under Section 330 of IPC i.e., seven years of rigorousimprisonment, while maintaining the fine imposed by the Trial Court.Accordingly, we modify the sentence to this limited extent.

35. In light of the afore-said discussion, we partly allow the CriminalAppeal Nos. 182-187 of 2009 in the afore-stated terms. Further CriminalAppeal Nos. 385-386 of 2008, Criminal Appeal Nos. 387-388 of 2008,Criminal Appeal No. 299 of 2008 stand dismissed.

36. The appellants-accused are directed to surrender before theauthorities for serving out the rest of the sentence forthwith.

Ankit Gyan Appeals disposed of.